As one of the leading popularizers of Predator Theory, here’s how I see it: most rapes are committed by a relatively small part of the population, that know exactly what they are doing and know how to get away with it. There are other rapes that don’t follow that pattern, and for which many other dynamics may be applicable. To reduce the number of rapes, the most powerful thing people can do is to create social circumstances that make it harder for the predators to blend in and excuse their behavior and get support, what I generally call their “Social License To Operate.” Reducing the role of intoxicants as a social lubricant and adjunct to finding sex partners and having sex will do wonders in this area, because intoxication is both the predators’ favorite weapon and favorite excuse. Stopping people from making mistakes about consent when intoxicated is a good thing, but I think that stopping people from thinking mistake-of-consent is normal is actually more important, because it is so important in our culture to serial rapists’ social license to operate.

Three separate arguments about alcohol and sex, each coming from a slightly different direction. Guest Blogger seems to be addressing people who still may be capable of making decisions about sex, but whom she thinks are too drunk to judge their own behavior; there may be a degree of intoxication where you’re still capable of remembering a bright line and being generally aware that you’re drunk, but not so good at judging anything more subtle. Thomas MacAulay Miller thinks rapists aren’t, in fact, people who make mistakes about consent while drinking, but that removing the excuse that doing that is sort of OK removes their cover. And figleaf thinks people who are too drunk to drive should be left alone because they can’t properly consent. But all of these arguments point toward not drinking and having sex, just as you don’t drink and drive.

Now, here’s what I don’t get. I can understand why someone might not want “too drunk to drive” to be the legal standard for rape. Because being legally convicted of rape means going to prison for a very long time. For that reason, quite properly, as with any other crime, we require that you be convicted by a jury of twelve of your peers who find that the evidence proves you guilty beyond a reasonable doubt. It is entirely possible that the other person was drunk enough that someone should have taken her car keys away, and you (even if stone cold sober) weren’t aware of it.

I’ve been in this situation myself, in fact. One time, a woman was making advances to me at a party, and offered me a ride home. I was completely sober, had not even had so much as half a drink. I was also, perhaps precisely because I wasn’t much of a drinker, not all that attuned to the signs that she was intoxicated. She wasn’t actually staggering or slurring her words. I hadn’t seen how many drinks she’d had. Someone else, who knew her well, could tell that she was drunk, and stepped in, on my behalf, telling her that she was in no state to drive. And, since it was a bit dark for me to bike, our host offered me a bed in a spare room. Given that I was incapable of judging her incapacity to drive, do I think I ought to have been judged guilty of rape if she and I had wound up going to bed together? Of course not. Then again, I can’t imagine any jury actually applying the standard “drunk enough that some people can figure out that you shouldn’t be driving and others can’t.” There is, after all, the protection of reasonable doubt, and that’s a truckload of reasonable doubt.

Likewise, I can understand why people might see circumstances where sex when too intoxicated to drive may occasionally be OK in the context of an established relationship. I once, in the context of an established relationship, shared a joint with someone before sleeping together. The consent to sex happened before either of us took a puff from that joint. It would be rather silly to suggest that people can’t have sex that they’d already agreed on having if they first have a little more pot or alcohol than they’ve have if they were planning on driving.

What I don’t understand is why, when someone poses “too drunk to drive” as a line where people might reasonably also conclude “too drunk to have sex,” there is often a chorus of people saying that

Most people have sex when they’re drunk. (Really? They do? I’ve never had sex while drunk in my life, and I know lots of people who don’t have sex when they’re drunk.)

Having sex for the first time, with someone with whom you’ve never done anything sexual before, while that person is drunk is a good idea. (I can’t imagine why. To my mind, first time sex is exactly the situation where you’d want to be damn sure you had the other person’s full enthusiasm while that person was sober.)

Alcohol is a vital social lubricant, without which people will be too ashamed to do the sexual things they really want to do. (Again, really? It’s been thirty years since I went to college. I was able to have sex, while there, with multiple people, without any of us drinking first. There wasn’t any sex that I wanted to have that I turned down for lack of Dutch courage. Have people really become tons more sexually inhibited in the last thirty years?)

Sex is better if you can add alcohol. (Most of my worst experiences with other people’s sexual advances involved men who were drunk. All my best experiences involved people who weren’t drunk. Alcohol has absolutely not enhanced my sexual experience.)

I don’t get it. Why do so many people think it’s a huge loss not to have “too drunk to drive” sex?

9 Responses to “Things I don’t get: alcohol and sex”

If you aren’t much of a drinker, then your own experiences with and attitudes towards alcohol aren’t going to match up with people who *are* drinkers. Someone who frequently drinks alcohol to the point where they cannot legally drive a car is going to think of that state as more normal than someone who rarely drinks that much.

Many people don’t personally think of 0.08 BAC as being excessively drunk. They might follow the law, and thus don’t drive, but the law used to allow up to 0.10. I’d ride in a car with someone who had a 0.08 BAC. We aren’t talking about a level of drunkenness that is intuitively scarey for experienced users of alcohol. Other countries set a yet lower limit on BAC. Obviously when it comes to when someone is too intoxicated to physically operate a dangerous machine, we don’t let drunk’s feelings about alcohol predominate. We just tell drunks what is allowed, and that’s that.

When it comes to consent, however, it is hard for me personally to buy into the “if you are too drunk to drive, you are too drunk to make decisions” line. I don’t think of myself as lacking the capacity to consent at 0.08. I would resent someone who tried to convince me otherwise. And I think that most people who enjoy drinking feel the same way. It isn’t that I object to drawing a line, but drawing a line *there* doesn’t square with my personal experience. Slowed physical reaction time is one thing. Not being able to figure out what I want and communicate it is something else entirely.

I do think a line needs to be drawn, I just don’t think 0.08 is a place that will be meaningful or realistic in the minds of the people who most need the social norm.

OK. What line would you consider more realistic, for “too drunk to consent”? I’d want it to be something better than “you’re only too drunk to consent if you’re completely passed out and unresponsive.”

I don’t believe in casual sex in general, although I recognize the flesh is weak, etc. and it’s a part of the world we live in. But in general, I don’t think ‘too drunk to drive’ is a good metric for ‘too drunk to consent’. As William says, too drunk to drive is not really very drunk at all. I’m a moderate drinker, and I don’t drink on weekdays, but when I go out I do generally have a bunch of drinks and count on not driving home. Part of this is that I was recently diagnosed with social anxiety, which I’ve had all my life, and I use alcohol to overcome inhibitions.

I agree we probably need a moral guideline for ‘too drunk to consent’ that’s stricter than the legal guideline of ‘passed out and unresponsive’, but I don’t agree that 0.08 should be it.

Re: Alcohol is a vital social lubricant, without which people will be too ashamed to do the sexual things they really want to do. (Again, really? It’s been thirty years since I went to college. I was able to have sex, while there, with multiple people, without any of us drinking first. There wasn’t any sex that I wanted to have that I turned down for lack of Dutch courage. Have people really become tons more sexually inhibited in the last thirty years?)

See, this is an example of how different our experiences might be. I am *such* an inhibited person that I can totally see myself being in that position. Hopefully I’m going to start getting some experience with drugs & therapy that will help me overcome that, but right now, yes I definitely do use alcohol as an important social lubricant and anxiety reducer.

And just to clarify, I’m not *at all* advocating anyone taking advantage of people who are genuinely too drunk to consent. I just don’t think ‘too drunk to drive’ is a good borderline.

Also to clarify, I’m not saying casual hookups are *good*, drunk or not. I generally think sex should happen in the context of serious relationships, after you’ve known the person for awhile. Sometimes long term relationships do start out with sex though, and sometimes there’s a fair amount of alcohol involved. I don’t think those should be viewed as morally equivalent to (or approaching) rape, unless people are genuinely really unable to consent. I don’t know where that line is, but I don’t think 0.08 is it.

I mean, literally, I sometimes can’t even bring myself to talk to someone at a bar or a party until I’m past the legal limit.

@Hector: I think the *legal* definition of rape has to be something that an inexperienced teenage boy is capable of perceiving. Not an experienced traffic cop who knows what to look for, or an experienced bartender who’s good at perceiving the signs of intoxication, but someone who knows little of the effect of alcohol on people’s responses. I’m OK drawing bright legal lines that people may not agree with (0.08 is the legal limit to drive, even if you think you can still drive at above that limit), but not ones that a large number of reasonable (if inexperienced) people may be incapable of seeing. So, at a minimum, the person who’s too drunk to legally consent ought to show sufficiently gross physical impairment (slurring of words, loss of balance) that a reasonable person could be expected to see it.

Ethically, I’d want the line to be before the point where people would be likely to be in alcoholic blackout territory (which I’ve read happens at about 0.15). I gather that’s supposed to happen at around the same point where people show signs of gross motor impairment and loss of balance. So if the ethical limit isn’t 0.08, it ought to come before 0.15.

On the other hand, I’ve seen some argue, in other discussions about sex and alcohol, that some people can be in an alcoholic blackout and show little sign of impairment at all. If this is so, it seems to me to be an argument for not having sex with people until you know them well enough that you can gauge their response to alcohol, because waking up to discover that something or other sexual has happened, that involves you, that you can’t remember, sounds to me like a truely dreadful experience.

The ethical line also sort of makes sense, but it’s a trickier issue. I’m surprised blackout territory is at 0.15, because I’m pretty sure I’ve been in that territory and was none the worse for wear next day. (Certainly I’ve never blacked out). I think I’d agree with you in general that you shouldn’t have sex with people until you know them at least well enough to understand if they’re generally consenting or not, and unless you’re clear that they aren’t in blackout territory.

Just out of curiosity, what are your thoughts about two people that are perceptibly drunk, hooking up but stopping short of sex?

There’s a lot of individual variation in when people reach the blackout threshhold, with women on average reaching it at a lower threshhold than men, and some people having a genetic susceptibility for reaching it sooner than others. I’ve also seen different online alcohol charts give different BAC amounts for when it’s likely to be reached; I took the lower of those amounts (0.15) on the theory that one should be conservative about such things (my guess is that the charts that give a lower number are giving when a significant minority might reach the threshhold, while the ones that give a higher number are giving when the median person might reach the threshhold).

“Hooking up” is a pretty general term. We didn’t use that word when I was young and single (though the thing of course existed under different names), so I’m not entirely sure whether I’m right on the boundaries of the definition, but I gather it can mean anything from fully clothed making out to sex.

I assume the two people are both actively engaged in the process and still capable of forming coherent sentences about what they want? I think that the blackout issue is going to be more serious the more physically vulnerability the situation may involve. Waking up in bed with someone and not knowing what you’ve done with them? A problem, whether you actually “went all the way” or not. Acts that might risk either STDs are an issue (as well as, obviously, the one act that risks pregnancy), and likewise for any BDSM practices that might put you at risk for injury if not properly carried out. And of course if there are commitments involved, that the two wouldn’t have breached if they’d stayed more sober, that’s a problem. But if they’re, say, two eligible single people dirty dancing and then French kissing afterwards, then I’d see less cause for concern.